ISLAMIC MARRIAGES in the UK AND THE PITFALLS
INTRODUCTION – this is a growing area of litigation and uncertainty as to the status of these marriages in the UK. In this paper I simply highlight certain areas where they are commonly performed and the affect it has on some parties and on their family rights.
Marriage in Islam is a contract and can be performed in a house, a mosque, a restaurant or an open space. There is no requirement for a recognized or solemn venue. What you need are 2 witnesses. There is no need for a religious ceremony but most if not all marriages performed by parties are either religious or quasi religious.
Marriage in Islam is called a Nikah. It is a ceremony that is frequently performed in many parts of the UK.
Parties commence their married lives after a Nikah. They have children. Then they fall out. Parties generally live in the husband’s house. He tells her to get out of ‘his house’. The wife was the homemaker and the husband was the breadwinner. She thought it was her home too. Communication breaks down. Lawyers are the next option these parties have.
The wife believing she is married goes off to see a matrimonial lawyer to get advice as to her matrimonial rights, only to find out that she is not a ‘wife’ under English Law and thus not entitled to any matrimonial rights. Herein lies the problem. She always believed she was married and cannot begin to comprehend how it can be she is not. She has the wedding pictures to prove it plus all the fan fare and bills of costs that go with a wedding.
How is this possible you may well ask.
Quite simply the parties involved have different understandings of the effect of a Nikah and may have had their own private reasons why they had a Nikah.
For example (and they may be more) -
a)the women generally are under the mistaken belief that they have entered into a ceremony that is valid and will be recognized in the UK;
b)the husbands may hold one or another belief - such as they are either genuinely ignorant of the effect of the Nikah or they fully understand the effect so well, such that it will not be recognized by law, so all their assets in the event of a breakdown are better protected.
c)Where a husband wants to marry two wives – thus chooses to have a Nikah with each; they may know of each other or they may not. Hard to say. Suspicions may exist but no real proof and life carries on until the day communication breaks down and the lawyers are called and all is revealed.
d)Where a woman does not want to be exposed to a claim on her assets she chooses to have a Nikah ceremony only. Common amongst the women who are in a second marriage or simply wealthy. These would then be the husband’s who are left out on a limb. It may be their choice to be in such a marriage – often entered by them as for them the woman is their ‘second wife’ and their first wife is a lawfully registered wife.
e)Where parties may simply wish to have ‘ legitimate sexual intercourse’ with no strings attached.
Is this common? – Sadly this is extremely common and in particular in areas where there is a high population of Muslims living in communities such as Bradford, Leicester, Manchester or indeed in some areas of London.
Effect –The fall out of these Nikah only marriages can be devastating on some families. Take an example where a wife has been living with her husband in a property, which is in his sole name and had 2 children when the marriage breaks down. Her name is not on the title of the property – she has no right to a share of the house under the Matrimonial Causes Act 1973 – as she is not a spouse who is recognized. One could equate her to a ‘common law wife’ – but as we all know too well, even that does not give her any matrimonial rights.
Her remedy would be to start an action in the Trusts of Land and Appointment of Trustees Act 1996 if she had contributed towards the property to an extent that she could claim a beneficial interest. This would probably be evidentially harder and if she was a homemaker rather unlikely. Effectively she is left high and dry. Her lack of knowledge of the legal status of her Nikah has cost her dearly.
A long and windy process awaits her should she wish to make a claim for her children – under the Financial Provision for Children Schedule I of the 1989 Act. This is available to parties even if they are not married. The claims are for the ‘benefit of the child’ but the courts construe the power widely and make orders where the benefit for the mother benefits the child.
However, what should be a straightforward claim under the Matrimonial Causes Act 1973for these women now becomes a litigation minefield.
Effect on the Children – the children will be illegitimate as far as the English Law is concerned. As to whether the father has what is called ‘parental responsibility’ for the child will depend on whether his name is on the birth certificate at the time of registration.
Usually if the parents were married at the time of the child’s birth then a father would automatically have parental responsibility, and if not then he would need to apply.
However, since 1st December 2003 a father who was not married at the time of the birth but has his name placed on the birth certificate at the time of registration will assume parental responsibility from the date of the registration rather than the birth.
In reality, an unmarried father will not be able to register his name without the consent of the mother.
But if the parties Nikah was not a valid marriage it would follow that unless the father has his name on the birth certificate at the time of registration – he does not automatically have parental responsibility and would need to apply.
Furthermore, it would mean that the children were born out of wedlock – and thus illegitimate. An illegitimate child carries a huge stigma in the Islamic society and families would do their best to cover up this knowledge and from becoming public.
Why does society allow this?
This is a difficult one. We live in a free society. Society does not interfere in your life and allows most people to live their lives and regulate their private lives as and how they choose. I am sure most people will not tolerate being told how to regulate their personal lives and the choices they wish to make.
This is after all a democracy we live in. But, part of our Muslim communities are living in ignorance. They did not choose to live their lives on the sidelines nevertheless, due to a basic lack of knowledge and understanding they have ended up in a parallel life stream.
Muslims place a great deal of weight on their personal laws such as having the Nikah as being what is relevant and compulsory in order to be validly married. The fact that unless the marriage has been registered it confers no rights on them is something they are ignorant or have in some cases deliberately chosen to ignore.
What appears to be common is the complete lack of appreciation in mainly the women in these marriages. There needs to be a lot of education as to the impact of having a ‘Nikah only‘ marriage in the UK.
There is a duty in my view on the elders, the Imams and the family members to ensure that before a woman enters into the Nikah she is told that her marriage has no legal effect in the event of a breakdown and the courts will be unable to assist in protecting her interests and her children’s position.
A Brief look at Nikahs abroad.
A Muslim ceremony of marriage or Nikah performed overseas will be considered a valid marriage and recognized in the UK if the ceremony was conducted in accordance with the law of the land in which it was celebrated. Lex Loci Celebrationis.
Part of the misunderstanding and genuine confusion that exists in the UK amongst the Muslim communities arises from this fact.
Families go on holiday and celebrate a marriage and all they have undergone is a Nikah ceremony; they return to the UK and the parties marriage is recognized and the wife has all the rights and protection under the Matrimonial Causes Act 1973.
This causes genuine confusion.
Lesson – all Muslim marriages in the UK need to be registered in order for them to be recognized in the UK. It is important that the word is spread through the NGO’s, Mosques, Community Centres, Islamic Schools and even at the time of the Nikah ceremony itself that these marriages have no validity in the UK unless the parties have a civil ceremony and register the marriage.
I would now welcome any discussion, comments and or views as how to better educate our Muslim communities,to avoid these pitfalls, in particular for these women who are living on the side lines to enable them to be brought into the legal fold and be fully protected by the laws of our land.
Ayesha Hasan
Barrister
3, Dr Johnson’s Buildings
Temple EC4Y 7BA
29th September 2015
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